Pourabbas Aghbolagh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application by Pourabbas Aghbolagh (the Applicant) for review of the mandatory cancellation of his Class BB Subclass 155 Resident Return visa. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) had cancelled the Applicant's visa under section 501CA(4) of the *Migration Act 1958* (Cth) on the basis that the Applicant failed to pass the character test due to having a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. The Applicant sought to argue that there was another reason why the cancellation should be revoked. The decision was made by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was another reason why the mandatory cancellation of the Applicant's visa should be revoked, considering the framework and principles set out in Direction No. 90. This involved assessing the primary and other considerations stipulated in paragraphs 8 and 9 of the Direction, including the protection of the Australian community, whether the conduct engaged in constituted family violence, the best interests of minor children, and the expectations of the Australian community, as well as international non-refoulement obligations, impediments to removal, the impact on victims, and links to the Australian community.

The Tribunal considered the Applicant's traffic history and drug use, finding that his traffic history, particularly drug-driving convictions, suggested a predisposition to irresponsible behaviour, and that the totality of his conduct in Australia was of a very serious nature. While acknowledging the provisions of paragraph 8.1.1(1)(a)(iii) of the Direction regarding family violence, the Tribunal noted the potential for double-counting if family violence-type conduct, for which no convictions were recorded, was considered under both paragraph 8.1.1(1)(a)(iii) and paragraph 8.2. Consequently, the Tribunal elected not to apply the componentry of paragraph 8.1.1(1)(a)(iii) in assessing the nature and seriousness of the Applicant's conduct, but would refer to such conduct for the purposes of paragraph 8.2. The Tribunal also noted that paragraph 8.1.1(1)(c) precluded it from referring to sentences imposed for violent crimes against women or children, or for offending involving acts of family violence.